Hateful speech

A racially tinged letter lands the alleged sender in federal court.

In the second week of February, Cassandra and Edward Terry, an African-American couple, moved with their two children to the Country Club of Arkansas neighborhood in Maumelle.

Cassandra, a mental health care professional, and Edward, a member of the Arkansas National Guard, were pleased with the decision — they felt they had found the right house, and they were impressed with local Maumelle Middle School.

But not everyone on the block was happy to have them there. On Feb. 26, less than two weeks after the family settled into their new home, Cassandra Terry opened her mailbox and found this letter:

Just a note from ALLyour new neighbors in the new neighborhood. This is a white neighborhood and if you have to choose to live in a white neighborhood ACT white not like niggers. Keep your children contained in yourhouse and not hanging out in the street like gangs. You really hurt the property value of the neighborhood. We so appreciate that.

Terry called her husband, who was away on Guard duty. Although neither knew if the letter was criminal, they decided that its threatening nature warranted action. She filed a report with Maumelle police. Sam Williams, the police chief, suspected that he had a civil rights issue on his hands, so he called the FBI.

Although sources are hesitant talk about the development of the case, the feds moved quickly. On May 2, a federal indictment was returned against Shawn Simone Hardin, the Terrys’ next door neighbor, for violating two federal statutes. The first prohibits sending threatening communications through the U.S. mail. The second, and the one that’s more unusual, forbids interference with housing on the basis of race, color, religion, sex, handicap, familial status or national origin. In December, the U.S. government will argue that the 82 words sent to the Terrys constitute a criminal violation of the Terrys’ civil rights — or, to use a term that has gained wide currency in the past two decades, a hate crime.

“Hate crime” is a concept that’s somewhat easier to define in writingthan it is to pin down in practice. On paper, it means any crime that is motivated primarily by an innate quality of the victim. It’s a tricky concept to apply legally, however, precisely because it describes motives rather than acts. To show that a hate crime has been committed often requires delving into psychology, where doubt runs much higher and proof is more elusive than in the realm of physical evidence, eyewitnesses and other hard facts.

That difficulty has not deterred legislators at both the national and the state level from passing anti-hate-crime statutes. Federal law authorizes the FBI to collect data on crimes with a bias motive, and 45 states, not including Arkansas, have some sort of legislation allowing harsher sentencing for hate crimes.

Yet in practice, the impact of these laws has mostly been limited to raising awareness about hate. They don’t prohibit any behavior that isn’t already prohibited under existing law. (A burglary is a burglary whatever the motive.) Even then they have been only marginally effective. Local law enforcement agencies don’t have to participate in FBI data collection, and state laws are all over the map — some, for example, include crimes based on sexual orientation, but others do not. And five states, including Arkansas, don’t have a hate-crime law at all.

Whether Arkansas should pass a hate-crime statute has been a point of heated debate. According to state Sen. Tracy Steele, three hate-crime bills have been killed in the legislature, the most recent one because it contained a sexual orientation provision that many lawmakers opposed. But even if Arkansas had a hate crimes law, it wouldn’t apply to the Hardin case. The right to fair housing is a federal protection, and so it falls to the federal government to make sure it’s enforced.

John DiPippa, professor of law at UALR, says that Hardin’s case isn’t technically a “hate crime” case, or one in which an enhanced sentence is possible on account of a racial element to the offense. “The Supreme Court has found that you can’t punish thought and you can’t punish speech,” he says, and he points to R. A. V. v. St. Paul as a case where the Supreme Court found that a law barring speech against specific groups contradicted the First Amendment. A later case, Wisconsin v. Mitchell, allowed bias to be considered in sentencing after conviction.

You can, however, punish the violation of a specific law — such as criminal interference with right to fair housing. Violation of that law could be construed as a hate crime in the broad sense that civil rights violations are motivated by bigotry. But what most concerns the government here is not that Hardin’s letter appeared to be racially motivated, but rather that it was prohibited by the Fair Housing Act. “By sending a letter to an occupant, you’re putting them on notice,” says DiPippa. “It doesn’t take more than 80 words to interfere with someone’s right to own property.” In the eyes of the law, a ream of racist literature distributed indiscriminately is of less consequence than one brief, directly targeted note.

While FBI records indicate that hate crimes aren’t uncommon in Arkansas — 134 were reported by local police agencies in 2005 — they’re rarely prosecuted. Most of the reported crimes fall under state jurisdiction and are prosecuted under relevant statutes, but without the addition of a hate crime charge. When a transvestite was killed in Fayetteville in 1996, to name one offense that could have been considered a hate crime, the perpetrator was convicted under the murder statute. Since 1999, there have been only two other federal cases in Arkansas that involved a bias motive. In 1999 Clint Winn pleaded guilty to federal civil rights charges for burning two crosses in front of a Native American woman’s home. This past February, James Bradley Weems and Christopher Mitchell of Fouke were convicted in the Western District of Arkansas under the statute being used in the Hardin case.

Although any number of factors could account for the rarity of federal hate crime charges — unidentifiable suspects, silence on the part of victims, other priorities for the prosecutor — it seems unlikely that the sort of speech Cassandra Terry found in her mailbox in February hasn’t occurred elsewhere in the state over the past decade. So why this particular indictment at this particular time?

A partial explanation may lie with the interim U.S. attorney who filed the case, Tim Griffin. Griffin, who left office at the beginning of June — amid accusations that he had participated in Republican efforts to suppress black votes in the 2004 presidential election — made it a point during his brief tenure to stress civil rights issues. He held meetings on civil rights issues around the state and, at a recent speech at the Clinton School of Public Service, proudly noted the Hardin prosecution as one of the achievements of his tenure. He didn’t return calls seeking further comment on his motivation in pursuing this particular case.

It’s an interesting case, in part, because, after all, it is only about a handful of written words. As such, a conviction could set a powerful precedent on what the law won’t stand.

Although the racial animus in the letter appears manifest, it isn’t an act so blatant or tangible as physical violence against another person or a cross-burning. Thanks in part to the high-profile 1998 slaying of Matthew Shepard, a gay Wyoming college student, the term “hate crime” popularly suggests violence: A murder, rape, or assault where the criminal nature of the act is obvious but where a motivation of bias is more difficult to prove, even if there’s evidence to suggest it. In Hardin’s case, the racial motive is spewed all over the page, but anyone who’s not familiar with federal law would be hard-pressed to point out an actual crime. The letter’s author just happened to be foolish enough — and ignorant enough of the law, no doubt — to put a bigoted sentiment about housing into writing and then put it in the mail. Had Hardin simply approached the Terrys and run her mouth, she likely wouldn’t be sitting in a federal courtroom in six months. The letter arguably shows an intent that goes beyond spitting out racial epithets. It’s the intimidation in the note, rather than racial remarks, on which the alleged crime is based.

Although the Country Club of Arkansasneighborhood has a golf course and plenty of lush lawns, it’s the houses, not the landscaping, that dominate the view there. The first thing you notice is that each of the squat, one- and two-story structures resembles the others, give or take a shade of brick or an extra flourish on the roof. The second thing you notice is that, despite the wave of green, the yards don’t run deep, and they’re even more cramped by the close-set homes. There’s no more than a few feet between each house, and the outdoors is no place for privacy. If you don’t like your neighbors, there’s not much way to avoid them save staying inside — or encouraging them to move elsewhere.

That Hardin is the author of the letter is not seriously in question. During an interview at her home, she was asked if she used a racial epithet in a note to the Terrys. She responded, without hesitation, “I told them to quit acting like niggers.” Then she qualified the comment by saying that she couldn’t remember writing the letter. She said that she suffered brain damage from a motorcycle accident that left her in a coma for 48 days and in the hospital for three months. (Friends have confirmed she suffered serious injuries in a motorcycle accident some years ago.)

In defense of the note, Hardin said that the Terry clan spilled over onto her lawn when they were outside. She was particularly put off by their 12-year-old son, whom she deemed a threat to her eighth-grade daughter.

“He was coming over every friggin’ day,” she said.

She said she didn’t consider it normal for the Terrys’ son to want to play with a neighbor.

“No kid has ever come over here,” she said.

She also cited two recent incidents in explanation of her fear of the Terrys: a double rape case at Lake Willastein in Maumelle last year and a rape charge that was brought against a student at Maumelle Middle School in May, both of which involved African-American suspects. (The incident at Maumelle Middle occurred after Hardin was indicted, however.)

“I shouldn’t have said that,” she said of the letter, “but I was just so scared for my daughter.”

Cassandra Terry has never met Hardin, but she confirmed that Hardin confronted her about her son in a second letter, which Hardin taped to the Terrys’ door after she was indicted. Although the Arkansas Times was unable to obtain a copy, a report Terry filed with the Maumelle police after the incident said that “the letter appeared to be ramblings about reasons for the first letter and reasons why the victim should not prosecute.”

Terry characterized it further: “It was very manipulative. [Hardin] said she didn’t remember writing the letter and that she has a brain injury. She also said that she was afraid for her daughter and that she heard our family has a criminal past.”

Despite the hostility next door, the Terrys are planning to stick it out in the Country Club.

“I don’t feel threatened, but it’s awkward.” Terry said. “We share a strip of lawn. My kids don’t play outside like they would have normally.”

Although the family has gotten support from Maumelle residents, particularly from a local association called Neighbors Helping Neighbors, their immediate surroundings remain quiet. The Terrys are keeping to themselves, and they haven’t broadcast the incident.

“We’ve been pretty low-key about it,” Terry said. I’m not sure that the people in the neighborhood know that it’s us.”